Point of Law: Constitutional guarantee under Art.21 of the Constitution of India embraces both the life and liberty of the accused and the interest of the victim as well as of the society at large and cannot be alienated from each other.

ORDER :

This Crl.M.C. has been preferred by the accused No.8 in SC No.118/2018 on the file of the Additional Special Sessions Court (SPE/CBI)–III, Ernakulam (for short, 'the court below') challenging the investigation undertaken and being carried out by the investigating agency under Section 173(8) of the Code of Criminal Procedure (for short, Cr.P.C.) pursuant to Annexure 10 report dated 29/12/2021.

2. The petitioner along with the remaining accused faces trial for the offence punishable under Sections 120(B), 109, 342, 366, 354, 354(B), 357, 376(D), 506(1), 201, 212 r/w 34 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology Act, 2008 (for short, 'the IT Act').

3. The prosecution case in short is that, on the night of 17/2/2017, the victim, a South Indian cine actress, was abducted and sexually assaulted by the accused Nos.1 to 6 in a moving vehicle at Ernakulam while returning from the shooting location pursuant to a conspiracy allegedly schemed by the petitioner, a South Indian Cine actor and producer.

4. The crime was registered on the date of occurrence itself. The investigation was conducted by a special team. The final report was initially filed on 18/4/2017 against the accused Nos.1 to 7. Annexure 2 is the said final report. Thereafter another special team conducted further investigation and filed further report on 22/11/2017 against 12 accused persons including the petitioner. Annexure 6 is the said report. The petitioner is arrayed as the accused No.8.

5. The Judicial First Class Magistrate Court, Angamaly took cognizance of the offence and committed the case to Sessions Court, Ernakulam on 7/2/2018. Thereafter, the case was made over to the Court below for trial and disposal.

6. The accused Nos.11 and 12 were discharged by this Court. The charge was framed against the remaining accused. During the course of trial, the Court below granted pardon to the accused No.10 and on acceptance of pardon, he was taken as a witness and examined as PW176.

7. The examination of the prosecution witnesses commenced at the Court below on 30/1/2020. As many as 202 witnesses (PWs1 to 202) were examined on the side of the prosecution. It is submitted at the Bar that CW355 alone remains to be examined.

8. On 29/12/2021, the Investigating Officer (CW355) filed Annexure 10 report u/s 173(8) of Cr.P.C. informing the Court below that the investigating agency is intending to conduct further investigation in the matter. It is stated in Annexure 10 that the further investigation was necessitated on account of certain revelations made by one Sri. Balachandra Kumar, a film director, pertaining to the involvement of the petitioner in the crime. Sri.Balachandra Kumar alleged to have sent a petition dated 22/11/2021 to the Chief Minister of Kerala for further investigating the case on his disclosures and also to provide protection of the person and properties of himself and his family members. According to CW355, a copy of the said petition was sent by Sri. Balachandra Kumar to the SHO, Nedumbasserry on 27/12/2021 via e-mail, who on receipt of the same mailed it to him for necessary action. The copy of the said mail is produced along with Annexure 10. CW355 found it necessary to make further investigation pursuant to the revelations made by Sri.Balachandra Kumar in his petition and accordingly Annexure 10 report was filed.

9. According to the petition of Sri.Balachandra Kumar, on a day in the month of December, 2016, he went to the residence of the petitioner at Aluva to discuss about a movie. On that day, he happened to travel along with Sri.Suni @ Pulsar Suni (accused No.1), who was also there in the house of the petitioner along with Sri.Anoop, the brother of petitioner, in a red Swift car. It is stated that, Sri.Anoop introduced Suni @ Pulsar Suni to him while travelling in the car. It is further stated that in the month of February and April, 2017, he had discussion with the petitioner about Pulsar Suni and during the sai